Susan A. Faunce, trial lawyer and partner at Berman & Simmons

Medical Malpractice and Federally Funded Health Centers

Introduction
As attorneys, we have a duty to our clients to inform them of when the statute of limitations will expire in their potential claims. In general, the statute of limitations in medical malpractice claims in Maine is three years from the date of the first negligent act. A notice of claim pursuant to the Maine Health Security Act must be filed within that timeframe or the claim will be forever barred. However, the three-year statute of limitations does not apply to all Maine healthcare providers. Some providers, such as physicians employed at federally qualified health centers (FQHCs), are subject to a shorter statute of limitations and are protected by special notice requirements. It is essential to know when an FQHC may be involved in a medical malpractice case to provide accurate information to a potential client.

What is a federally qualified health care center (FQHC)?
FQHCs are community-based health centers, funded by the federal government, that serve populations with limited access to health care, including low income individuals, the uninsured, and those with limited English skills. See 42 U.S.C. §§ 254b, 1396d(i)(2)(B). FQHCs provide primary care, preventative health screenings, and other services such as dentistry and mental health/substance abuse counseling.

According to the U.S. Department of Health and Human Services, in 2011, more than 1,100 community health centers operated over 8,500 sites that provided care to approximately 20.2 million patients. Approximately one third of FQHC patients are children and forty percent of FQHC patients have no health insurance. There are currently over 100 health centers operating in Maine.

Filing suit against an FQHC
Health centers must file annual applications with the Department of Health and Human Services to be deemed a federal entity qualified for protection under the Federal Tort Claims Act (FTCA). The application process involves reviewing the health center’s credentialing, quality improvement program, risk management systems, and past claims history.

If a health center qualifies to be protected by the FTCA, its employees are deemed to be federal employees immune from personal liability for medical malpractice claims which arise within the scope of their employment at the health center. If a health center or an employee of a health center is sued in state court, the matter will be removed to U.S. District Court and the United States will be substituted as the named defendant.

Statute of limitations
A claim against an FQHC must be presented in writing to the appropriate federal agency within two years after such claim accrues. 28 U.S.C. § 2401(b). In contrast to the Maine Health Security Act, which does not provide exceptions for “discovery” of the negligent act or omission, under the Federal Tort Claims Act a claim does not accrue until the claimant knows or should have discovered the critical facts of the injury and its cause.

It is often difficult to distinguish between a private health provider and an FQHC because the name of the entity, alone, does not disclose whether it is an FQHC. Some entities are listed within a database maintained by the Health Resources and Services Administration of the Department of Health and Human Services(http://bphc.hrsa.gov/ftca/healthcenters/ftcahcdeemedentitysearch.html). However, the database is not comprehensive. Often, the only way to confirm whether or not a health provider is deemed to be an FQHC is to check with the particular provider.

Notice to the federal government
Before filing a lawsuit in an FTCA case, a claimant must first seek an administrative remedy by presenting the claim in writing to the appropriate federal agency. If the claim is denied or not settled within six months of presentation of the claim, the case can be sued or the claimant can request a reconsideration of the denial.

Conclusion
The number of federally qualified health centers will continue to increase with the recent enactment of the Affordable Care Act, which provided $11 billion over a five-year period for the operation, expansion, and construction of health centers. As more medical malpractice claims in Maine will involve suing FQHCs, an attorney must be aware of the pertinent statute of limitations and notice requirements to ensure that their clients receive accurate information about their medical malpractice claims.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.